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TABLE V
INEFFECTIVE ASSISTANCE OF COUNSEL ISSUES
This table contains citations and a brief description of issues raised in Fourth Circuit and Virginia Supreme Court cases ruling on claims that defendants were denied the Sixth Amendment guarantee of the effective assistance of counsel. The table is limited to cases decided under the standard announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland, a capital case, placed the burden on claimants to show (i) that the performance of counsel was not reasonable under prevailing professional norms and (ii) a reasonable probability that, but for the unprofessional errors of counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The Strickland standard is highly deferential to counsel and instructs courts to apply a presumption that counsel was competent.
Strickland focuses on the adequacy of trial counsel. "As a general rule, there is no constitutional right to effective assistance of counsel when collaterally attacking a conviction." See Coleman v. Thompson, 501 U.S. 722, 750 (1991). An indigent defendant, however, does have a right to effective assistance of counsel on the first appeal as of right. See Douglas v. California, 372 U.S. 353 (1963). In Satcher v. Pruett, 126 F.3d 561 (4th Cir. 1997), the Fourth Circuit noted but did not decide the issue that "because ineffective assistance of counsel cannot be raised on direct appeal in Virginia, state habeas is the first opportunity in which [defendant] could raise the issue." In Mackall v. Angelone, 131 F.3d 442 (4th Cir. 1997), however, the court rejected the argument that a Virginia defendant "possessed a constitutional right to the effective assistance of counsel in his first state habeas corpus proceeding in order to raise his claims of ineffective assistance of trial and appellate counsel." (The dissent maintained that the defendant "had a right to pursue his Sixth Amendment guarantee of competent counsel during trial and appeal in his state habeas corpus proceeding with the assistance of competent counsel" because, in Virginia, a habeas corpus proceeding "is in reality a direct attack on the competency of his trial and appellate counsel in the only forum available to him."
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CLAIMS DENIED
Prieto v. Zook, 791 F.3d 465 (4th Cir. 2015).
Claim: Defense counsel failed to establish that defendant was intellectually disabled and therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).
Lawlor v. Davis, 288 Va. 223, 764 S.E.2d 265 (4th Cir. 2014).
Claims: Defense counsel allowed the witness to testify as an expert after he made several false statements about his education and experience; failed to elicit testimony from defendant's therapist regarding past physical and sexual abuse.
Morva v. Warden of Sussex I State Prison, 285 Va. 511, 741 S.E.2d 781 (2013).
Claims: failure to challenge eyewitness's testimony and cross-examine police officer; purported failure to adequately investigate and develop evidence relating to the conditions of defendant's confinement at the county jail in which killings took place.
Prieto v. Warden of Sussex I State Prison, 286 Va. 99, 748 S.E.2d 94 (2013).
Claims: failure to obtain medical evidence; counsel's concession that police did not act in bad faith in losing evidence; failure to raise adequate challenges to juror; failing to present evidence of organic brain damage, post-traumatic stress disorder (PTSD), and mental retardation.
Porter v. Commonwealth, 283 Va. 326, 722 S.E.2d 534 (2012).
Claims: multiple claims raising multiple issues.
Juniper v. Warden, 281 Va. 277, 707 S.E.2d 290 (2011).
Claims: numerous claims that counsel failed to adequately investigate witnesses and failed to pursue defense theories of the case.
Teleguz v. Warden, 279 Va. 1, 688 S.E.2d 865 (2010).
Claims: nineteen claims of inadequate representation.
Muhammad v. Kelly, 575 F.3d 359, 370 (4th Cir. 2009).
Claim: counsel did not object to defendant representing himself despite evidence indicating brain abnormalities and difficulties processing and communicating information.
Wolfe v. Johnson, 565 F.3d 140 (4th Cir. 2009).
Claim: counsel moved to strike a juror who was qualified and had "expressed
sensitivity to at least one basis for exercising mercy and voting for life."
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Powell v. Kelly, 562 F.3d 656 (4th Cir. 2009).
Claims: counsel failed to investigate and present all reasonably available mitigating evidence; failed to object to admission of the NCIC report that incorrectly stated defendant had been convicted of capital murder and reported charges that were nolle prossed or resulted in an acquittal.
Jackson v. Johnson, 523 F.3d 273 (4th Cir. 2008).
Claim: failure to object to Commonwealth's closing argument comparing
defendant's life to the victim's life.
Yarbrough v. Johnson, 520 F.3d 329 (4th Cir. 2008).
Claim: failure to adequately investigate and present evidence in mitigation.
Green v. Johnson, 515 F.3d 290 (4th Cir. 2008).
Claim: failure to appeal non-capital convictions after the first of two trials.
Johnson v. Tice, 275 Va. 18, 654 S.E.2d 906 (2008).
Claims: failure to move to suppress confession; failure to introduce evidence pointing to another perpetrator.
Powell v. Kelly, 531 F.Supp2d 695 ( E.D. Va. 2008).
Claim: failure to present mitigation evidence and to investigate the state's evidence in aggravation.
Lewis v. Warden, 274 Va. 93, 645...
